ALJDEC decisions subject to certification as final

15F-DI-127-REL · Department of Real Estate · 2015-06-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 13, 2015 APPEARANCES: Petitioner Aaron J. Dobson appeared on his own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General Roberto Pulver. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT On or about February 4, 2015, the Department of Real Estate (“the Department”) received Petitioner Aaron J. Dobson’s application to the Department to be licensed as a real estate salesperson, in which he answered “yes” to the following question: Has the Applicant/Is the Applicant: 13. Been convicted or entered into a plea agreement or a plea of NOLO CONTENDERE (no contest) to ANY misdemeanor in Arizona or any other state, whether or not the plea or verdict was set aside, judgment or sentencing was deferred, conviction was dismissed or expunged, or has been pardoned?

Petitioner also submitted a disclosure statement to the Department identifying several arrests and convictions. a. On or about July 23, 2003, Petitioner was arrested on charges of shoplifting and solicitation to commit forgery in Scottsdale, Arizona. On or about September 3, 2003, Petitioner entered a plea of guilty to (Amended) Solicitation to Commit Forgery, a Class 6 Undesignated Misdemeanor, in Maricopa County Superior Court, Case No. CR2003-018303. Petitioner was placed on probation for 18 months and ordered to complete 50 hours of community service, not to drink alcoholic beverages, and pay restitution, fines, and fees. Petitioner was 19 years old at the time. b. On or about January 22, 2006, Petitioner was arrested on charges of assault in Tempe, Arizona. On or about July 19, 2006, Petitioner entered a plea of guilty to Assault: Causing Injury, a Class 1 Misdemeanor, in Tempe Municipal Court, Case No. 06- 891446-3. Petitioner was also ordered to pay a $300.00 fine. Petitioner was 21 years old at the time. c. On or about June 12, 2010, Petitioner was arrested on charges of trespass, 2nd degree, in Scottsdale, Arizona. On or about July 30, 2010, Petitioner entered a plea of guilty to one count of Criminal Trespass, 2nd degree, in Scottsdale Municipal Court, Case No. CR2010-018670. Petitioner was placed on 12 months of unsupervised probation and ordered to pay fines and fees. Petitioner was also ordered not to return to the Theodore Hotel, the place he was arrested. Petitioner was 25 years old at the time. d. On or about May 12, 2011, Petitioner was arrested on charges of possession/use of marijuana in Scottsdale, Arizona. On or about September 6, 2012, Petitioner entered a plea of guilty to one count (Amended) Possession or Use of Marijuana, Class 1 Misdemeanor, in Maricopa County Superior Court, Case No. CR2012- 137898. Petitioner was placed on 12 months of unsupervised probation and ordered to pay fines and fees. Petitioner was 28 years old at the time. The Department did not submit the statements Petitioner included with the application describing the circumstances surrounding the arrests. On or about February 13, 2015, the Department sent Petitioner, via certified mail, an Intent to Deny Application for Original Real Estate Salesperson’s License, in which the Department informed Petitioner that, based on his application, it had concluded that he did not meet the qualifications for licensure pursuant to A.R.S. §§ 32-2123, 32-2124, and 32- 2153. The Department informed Petitioner that its conclusion was based in part, but not exclusively, based in part on the four convictions he disclosed. The Department informed Petitioner that his conduct had violated A.R.S. §§ 32-2153(A)(3), (B)(2), and (B)(10). Therefore, the Department notified Petitioner that it intended to deny his license application. On or about March 13, 2015, Petitioner requested an appeal. Upon further investigation, the Department discovered that on or about July 16, 2008, Petitioner entered a plea of guilty to a charge of Theft, a Class Misdemeanor, in Maricopa County Superior Court, Case No. CR2008-109347- 001 SE. Petitioner was sentenced to one year probation and ordered to pay restitution, fines, and fees. Petitioner was 23 years old at the time. At hearing, Petitioner admitted that he had also been convicted of underage drinking when he was 19 and a probation violation when he was 22. Petitioner asserted that he only listed the four convictions that he did because those were the convictions that were listed when he failed to receive his fingerprint clearance card. Petitioner acknowledged he had made mistakes in the past, but that he had changed. Petitioner attempted to explain the circumstances surrounding the convictions, but did not dispute the events occurred and that he was convicted. CONCLUSIONS OF LAW The Department bears the responsibility to protect the public through its enforcement of licensing statutes.[1] This matter lies within its jurisdiction. Petitioner bears the burden of proof and must establish that he meets statutory qualifications for a real estate salesperson’s license by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] A.R.S. § 32-2153 provides in relevant part as follows: A. The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter if it appears that the holder or applicant, within five years immediately preceding, in the performance of or attempt to perform any acts authorized by the license or by this chapter, has: . . . . 3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner. . . . . B. The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter when it appears that the holder or applicant has: 1. Procured or attempted to procure a license under this chapter for the holder or applicant or another by fraud, misrepresentation or deceit, or by filing an original or renewal application which is false or misleading. 2. Been convicted in a court of competent jurisdiction in this or any other state of a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense. . . . . 7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character. . . . . 10. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. This paragraph applies equally to violations of which the licensee was convicted in any lawful federal or state tribunal and to any admissions made in any settlement agreement by the licensee to violations.

The uncontested evidence established that Petitioner failed to include all of his convictions on his application in response to the question cited previously in violation of A.R.S. § 32-2153(A)(3) and (B)(1). The uncontested evidence established that Petitioner was convicted of theft in violation of A.R.S. § 32-2153(B)(2) and (B)(10). Petitioner engaged in a consistent pattern of criminal activity from the age of 19 through the age of 28 demonstrating that he is not a not a person of honesty, truthfulness, or good character in violation of A.R.S. § 32- 2153(B)(7). The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. It would not fulfill that statutory mandate by licensing Petitioner as a real estate salesperson at this time. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Department affirm its decision to deny Petitioner’s application for a real estate salesperson’s license at this time and dismiss this appeal. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order shall be five days from the date of the certification. Done this day, June 1, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] See Sigmen v. Arizona Dept. of Real Estate, 169 Ariz. 383, 388, 819 P.2d 969, 974 (Ct. App. 1991). [2] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at 1220 (8th ed. 1999).

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